COURT OF APPEALS OF VIRGINIA Before: Chief Judge Fitzpatrick, Judges Benton, El der, Frank, Humphreys, Clements, Felton, Kelsey and McClanahan Argued at Richmond, Virginia

PHILLIP MORRIS WASHINGTON OPINION BY v. Record No. 1734-03-4 JUDGE D. ARTHUR KELSEY AUGUST 9, 2005 COMMONWEALTH OF VIRGINIA

UPON REHEARING EN BANC

FROM THE CIRCUIT COURT OF STAFFORD COUNTY Ann Hunter Si mpson, Judge Joseph Taylor Brown (Simmons, Brown & Kane, P.L.C., on brief), for appellant. Eugene Murphy, Senior Assist ant Attorney General (Jerry W. Kilgore, Attorney General, on briefs), for appellee.

Phillip Morris Washington challenges his conviction for malicious wounding “after having been twice convicted of a violent felony” in viol ation of Code § 18.2-51 and § 19.2-297.1. On appeal, Washington contends th at the trial judge erred in permitting the Commonwealth to prove his two prior robbery convictions du ring the guilt phase of the bifurcated trial. Finding no error, we affirm the judgment of the trial court.

I. Prior to trial, Washington filed a motion in limine to prohibit the prosecutor from introducing evidence of his two pr ior robbery convictions during th e guilt phase of the trial. Washington asserted the prior convictions were not “relevan t and probative” and would be “unduly prejudicial” during the guilt phase of the trial. The tria l court disagreed, holding that Code § 19.2-297.1

⎯ like all other Virginia recidivism statutes

⎯ permitted the introduction of the prior convictions during the guilt phase. The jury found Washington guilty of malicious- 2 - wounding “after having been twice c onvicted of a violent felony” in violation of Code § 18.2-51 and § 19.2-297.1. The jury imposed a lif e sentence as required by Code § 19.2-297.1.

II. On appeal, Washington argues that Code § 19.2-297.1 forbids the introduction of his prior robbery convictions in the guilt phase of his jury trial. As Wa shington sees it, Code § 19.2-297.1 serves only as a sentencing enhancement statute

⎯ thus making his prior felony convictions relevant in the punish ment phase of the trial, but not the guilt phase. A divided panel of our Court agreed with this reasoning. Washi ngton v. Commonwealth , 44 Va. App. 157, 604 S.E.2d 92 (2004). Having considered the matter en banc , we hold the statute does not forbid the recidivism evidence from being presented in the guilt phase of a jury trial.

A. R ECIDIVISM & T HE C OMMON L AW Though the common law did not create recidivi st crimes as such, it did develop a well-recognized order of proof in such cases. “At common law, evidence of prior convictions was received at the trial of the principal offe nse, and the jury decide d guilt and recidivism simultaneously.” Recidivism & Virginia’s Come-Back Law , 48 Va. L. Rev. 597, 613 (1962). This “common law procedure for applying recidivist statutes . . . is, of c ourse, the simplest and best known procedure.” Spencer v. Texas , 385 U.S. 554, 566 (1967) (holding common law recidivism procedure did not vi olate due process principles). 1

1 See generally Harold Dubroff, Recidivist Procedures , 40 N.Y.U. L. Rev. 332, 336 (1965) (describing the “common law procedure” as one “in which the issue of guilt for the present offense and the issue of recidivism are determined simultaneously” by the same trier of fact), and David S. Sidikman, The Pleading & Proof of Prior Convictions in Habitual Criminal Prosecutions , 33 N.Y.U. L. Rev. 210, 211 (1958) (rec ognizing that the “common-law method requires both an allegation of the former convicti on in the present indictment or information and proof of that allegation at th e trial of the new charge”)

⎯ both cited in Spencer , 385 U.S. at 566 n.10; see also Louise Danaë Dale, Criminal Law: Proce dure: Propriety of Ju ry Consideration of Prior Offenses , 5 UCLA L. Rev. 320, 321 (1958) (“The ea rly English common-law allowed the- 3 - As a result, “in the absence of a statut e in derogation of the common law, most jurisdictions have refused to de viate from the old practice.” Recidivism & Virginia’s ComeBack Law , supra , at 613-14. 2 “It is not easy to see how, in the absence of some statutory provision permitting it,” a defendant can insist that the prior convictions be excluded from the guilt phase of the principal charge. People v. Sickles , 51 N.E. 288, 289 (N.Y. 1898). The common law, moreover, rejected any “legal presum ption” that ordering the proof in this manner would compromise the integrity of the trial. Johnson v. People , 55 N.Y. 512, 514 (1874). Consistent with the common law, the Vi rginia Penitentiary Act of 1796 allowed recidivism convictions to be admitted during the trial. See 1796 Va. Acts, ch. 2, §§ 24, 42, modified by Revised Code of 1819; see also Tyson v. Hening , 205 Va. 389, 392, 136 S.E.2d 832, 835 (1964). The Act also permitted a separate su pplemental proceeding in the Richmond Circuit Court solely to determine a prisoner’s recidivism status and to enhance the aggregate punishment accordingly. Id. Admitting the prior conviction at tria l, however, met with disfavor in the courts. Some Virginia jurists considered it akin to “trying a man with a rope about his neck.” Wright v. Commonwealth , 109 Va. 847, 855, 65 S.E. 19, 22 (1909) (quoting Rand v.

Commonwealth , 50 Va. (9 Gratt.) 738, 753 (1852)). The General Assembly responded in 1918 by amending the Penitentiary Act

⎯ then called the Virginia Habitual Criminal Act

⎯ to employ the supplemental proceeding in the

Richmond Circuit Court as th e exclusive means of imposing the recidivism sentencing

allegation of former conviction to be included in th e indictment and read to the jury.” (citing Rex v. Jones , 6 Car. & P. 391, 172 Eng. Rep. 1290 (1834))).

2 See also State v. Findling , 144 N.W. 142, 143 (Minn. 1913) (following the “general rule” allowing evidence of the pr ior convictions during the guilt ph ase of trial); Maguire v. State , 47 Md. 485, 497 (1878) (observing that “the practi ce in England, until cha nged by statute, was, as it is here, to allow the prosecu tion to put the prior conviction be fore the jury as part of its evidence in chief, and before the accused commenced his evidence” in defense (citing Rex v. Jones , 6 Car. & P. 391, 172 Eng. Rep. 1290 (1834))).- 4 - enhancement. Former Code § 5054 (1919). Th is “non-common law method” of addressing the issue remained the law in Virginia for many years. Recidivism & Virginia’s Come-Back Law , supra , at 600-01. In 1982, the General Assembly repealed the Vi rginia Habitual Criminal Act authorizing the supplemental recidivism proceeding. 1982 Va. Acts, ch. 636 (rescinding Code § 53-296). By that time, the legislature had enacted several crime-specific recidivism statutes. 3 See generally Ansell v. Commonwealth , 219 Va. 759, 762, 250 S.E.2d 760, 762 (1979). And, to a one, each such statute has been interpreted by Virgin ia courts to allow recidivism evidence to be presented during the guilt phase of trial. 4 See , e.g. , Medici v. Commonwealth , 260 Va. 223, 228-29, 532 S.E.2d 28, 31-32 (2000) (int erpreting Code § 18.2-67.5:3(A)). 5

3 See , e.g. , Code § 18.2-104 (misdemeanor larceny); § 18.2-232 (fraud in sale of fuels or oils); § 18.2-248 (possession with the intent to distribute or distributing cont rolled substances); § 18.2-270 & -271 (driving while intoxicated); § 18.2- 381 (obscenity generally). Since then, the General Assembly has enacted several more: Code § 18.2-46.3:1 (street gang crimes); § 18.2-67.5:1 to -67.5:3 (sexual offenders); § 18.2-144 (maiming, killing or poisoning of animals); § 18.2-246.14 (sale of counterfeit cigarett es); § 18.2-255.2 (sale of drugs near certain properties); § 18.2-258 (drug related common nui sances); § 18.2-311.2 (firearm offenses); § 18.2-369 (abuse/neglect of incapacitated a dults); § 18.2-374.1:1 ( possession of child pornography); § 18.2-376.1 (using a computer in connection with certain obscenity offenses); § 18.2-515 (racketeering).

4 See also Griswold v. Commonwealth , 252 Va. 113, 116 & n.2, 472 S.E.2d 789, 790 & n.2 (1996) (overruled on other grounds by Alabama v. Shelton , 535 U.S. 654 (2002)) (stating that “the prior offense must be charge d and proven” (quoting Calfee v. Commonwealth , 215 Va. 253, 255, 208 S.E.2d 740, 741 (1974))); Brown v. Commonwealth , 226 Va. 56, 58, 307 S.E.2d 239, 240 (1983); Commonwealth v. Ellett , 174 Va. 403, 409, 413, 4 S.E.2d 762, 764, 766 (1939); Berry v. Commonwealth , 22 Va. App. 209, 213, 468 S.E.2d 685, 687 (1996) (holding the conviction “of a prior like offense is an elemen t of the charge as it was set forth in the indictment, and is also a necessary pred icate to an enhanced penalty”); Dotson v. Commonwealth , 18 Va. App. 465, 467-68, 445 S.E.2d 492, 493-94 (1994); Pittman v. Commonwealth , 17 Va. App. 33, 35-36, 434 S.E.2d 694, 695-96 (1993); Farmer v. Commonwealth , 10 Va. App. 175, 179-80, 390 S.E.2d 775, 776-77 (1990), aff’d , 12 Va. App. 337, 404 S.E.2d 371 (1991) ( en banc ); Glover v. Commonwealth , 3 Va. App. 152, 161, 348 S.E.2d 434, 441 (1986), aff’d , 236 Va. 1, 372 S.E.2d 134 (1988).

5 It is true, as Washingt on points out, that Medici disclaimed any interest in addressing “policy” judgments about the subj ect or deciding whether “a prior c onviction is an element of the- 5 - B. T HE I NTERPLAY B ETWEEN C ODE §§ 19.2-297.1 & 19.2-295.1 In Virginia, the “Legislature is presumed to have known and to have had the common law

in mind in the enactment of a statute. The statute must therefore be read along with the provisions of the common law, and the latter will be read into the statute unless it clearly appears from express language or by necessary implication that the purpose of the statute was to change

the common law.” Moses v. Commonwealth , 45 Va. App. 357, 361 n.2, 611 S.E.2d 607, 609 n.2 (2005) ( en banc ) (quoting Wicks v. Charlottesville , 215 Va. 274, 276, 208 S.E.2d 752, 755 (1974)). Along similar lines, we “assume legislativ e familiarity with Virginia case law when the legislature enacts a statute which might impact upon that law.” Dodson v. Potomac Mack Sales & Serv., Inc. , 241 Va. 89, 94, 400 S.E.2d 178, 180 (1991); see also Waterman v. Halverson , 261 Va. 203, 207, 540 S.E.2d 867, 869 (2001) (“The General Assembly is presumed to be aware of the decisions of this Court when enacting legislation.”). Seeking a construction consistent with comm on law practice and our caselaw, we turn to Code § 19.2-297.1. Enacted in 1994, subsection A of the statute addresses recidivism involving

crimes of violence: Any person convicted of two or more separate acts of violence when such offenses were not part of a common act, transaction or scheme, and who has been at liberty as defined in § 53.1-151 between each conviction, shall, upon conviction of a third or subsequent act of violence, be se ntenced to life imprisonment and shall not have all or any por tion of the sentence suspended, provided it is admitted, or found by the jury or judge before whom he is tried, that he has been prev iously convicted of two or more such acts of violence.

offense charged.” Id. at 229, 532 S.E.2d at 32. But we do not think these caveats mean that Medici left open the question whether prior convictions could be intr oduced in the guilt phase. If the statute forbids this, as Washington cl aims, there would have been no logical reason for Medici to declare constitutional the statute’s effort to authorize it. In other words, we think it too unlikely to be true that Medici intended to declare a statute

⎯ albeit wrongly interpreted by the challenger on the very point in contest

⎯ to be constitutional when the correct interpretation of the statute would moot the const itutional challenge altogether.- 6 - The General Assembly coupled this recidivism st atute with the jury bifurcation statute, Code § 19.2-295.1, enacting both in the same bill. See 1994 Va. Acts, ch. 828 (S.B. 117). The jury bifurcation statute requires a “sep arate proceeding limited to the ascertainment of punishment” before the same jury decidi ng the defendant’s guilt. Code § 19.2-295.1. It authorizes the prosecution to introduce into evidence only the defendant ’s “prior criminal convictions by certified, attested or exemplified copies of th e record of conviction.” Id. Rule 3A:17.1(e)(1) repeats this limitati on. If the defense does not put on evidence, the prosecution cannot go any further than intr oducing the conviction orders. 6 Only when the defense puts on mitigation evidence may the prosecution then re but it with any “relevant, admissible evidence related to punishment.” Code § 19.2-295.1. Conspicuously absent from the jury bifurcat ion statute and Rule 3A:17.1 is any authority for the prosecution to present substantive ev idence (through witnesses and exhibits) showing how the prior convictions were not part of a “co mmon act, transaction or scheme” or whether the defendant was “at liberty” be tween each such conviction

⎯ two matters on which the prosecution bears the burden of proof under Code § 19.2-297.1(A). If the defendant does not concede these two points, neith er can be invariably assumed from the conviction orders themselves. Final conviction and sentencing or ders say nothing about the underlying crime’s relationship to other crimes. Nor do such orders, particularly those entered before the abolition of parole, identify the act ual period of incarceration.

6 See generally Jaccard v. Commonwealth , 268 Va. 56, 597 S.E.2d 30 (2004) (holding that Code § 19.2-295.1 authorizes the admission of conviction orders, but by omission, does not authorize the admission of probation violati on orders); Sheikh v. Buckingham Corr. Ctr. , 264 Va. 558, 566, 570 S.E.2d 785, 789 (2002) (holding that th e defendant’s “decision not to present evidence during the sentencing phase precluded the prosecutor from introducing any evidence other than a record of [def endant’s] prior offenses”).- 7 - While not saying as much, Washington appear s to assume the evidentiary limitation in the jury bifurcation statute was a mere legislativ e oversight. The bifurcat ion statute, he reasons, should allow in the penalty phase any ev idence required by any recidivism statute

⎯ not just copies of the prior conviction orders. The only way to sustain that position, however, would be to “judicially graft” an unwritt en provision into the statute, Cent. Va. Obstetrics & Gynecology Assocs., P.C. v. Whitfield , 42 Va. App. 264, 280, 590 S.E.2d 631, 640 (2004), under the subtle “guise of judicial in terpretation,” Holly Hill Farm Corp. v. Rowe , 241 Va. 425, 431, 404 S.E.2d 48, 51 (1991). It may or may not be better public po licy to structure recidivi sm proof differently. When interpreting statutes, however, such judgments are not ours to make. Cf. McBoyle v.

United States , 283 U.S. 25, 27 (1931) (observing that j udicial statutory construction cannot proceed “upon the speculation that, if the legislature had thought of it, very likely broader words would have been used”). That said, we accept some potential for prejudice likely accompanies the common law order of proof. It is for just this reason that we give cautionary instruc tions directing jurors to consider the admissible, but not inadmissible, aspects of recidivi sm evidence. Washington finds this remedy both naïve and illusory. If it is, though, the same can be said of Washington’s proposed remedy. The violent reci divist statute requires the jury to determine three things:

 whether at least two prior viol ent felony convictions exist,

 whether any were part of “a common act, transaction or scheme,” and

 whether the defendant was “at liberty” between each such conviction. Code § 19.2-297.1(A). If the jury finds against the defendant on all three, he receives a mandatory life sentence

⎯ a punishment far in excess of th e average term of years for the principal crime.- 8 - If forced to decide the reci divism questions during the penalt y phase of a bifurcated trial, the jurors would have to do so at th e same time as receiving evidence of every other criminal

conviction the defendant ever received. A nd if the defendant puts on mitigation evidence suggesting his good character and capacity at self-re formation, the jurors would also likely hear from the prosecution on rebuttal a ll about his bad character and the demonstrably poor odds of

his rehabilitation. To ensure that jurors do not i nvoke the violent recidivist stat ute as an emotional response to the defendant’s non-violent criminal past or his propensity generally for crime, we would necessarily have to give th em a cautionary instruction

⎯ the very thing Washington says we cannot rely upon. To be sure, the only way to completely avoid the pos sibility of prejudice

would be to trifurcate the case between a guilt phase addressing the principal crime, followed by a guilt phase dealing with Code § 19.2-297.1(A)’s recidivism evidence, later followed by a general sentencing hearing for everything else properly admitted under Code § 19.2-295.1 on the general subject of punishment. While a trial judg e may have the discretion to segment a criminal trial in this manner, we know of no authority requiring him to do so. 7

7 We also reject Washington’s argument that the particular placement of Code § 19.2-297.1 in Chapter 18 of Title 19.2 (entitled “Sentence; Judgment; Execution of Sentence”) implies that the recidivism statut e should be considered purely a tool of sentencing. In Brown v. Commonwealth , 226 Va. 56, 307 S.E.2d 239 (1983), the Court addressed former Code § 19.2-297, a recidivism statute creating a compound larceny offense. It too was codified in Chapter 18 of Title 19.2. Brown nonetheless held the recidivi sm evidence should be admitted during the guilt phase of the trial. Id. at 58-59, 307 S.E.2d at 240-41. The statute’s particular placement in the Code appeared to have no legal relevance to th e reasoning of Brown . We can hardly hold it has dispositive relevance here. As a general rule, “the tit le of a statute does not give meaning to a statute.” Foster v. Commonwealth , 44 Va. App. 574, 580, 606 S.E.2d 518, 521 (2004) (citing Code § 1-13.9). All the more, we cannot extrapolate a st atute’s meaning from the title of a Code chapter.- 9 - III. Consistent with common law practice and se ttled Virginia caselaw, we hold that the recidivism evidence necessary to implicate the terms of Code § 19.2-297.1 may be admitted during the guilt phase of a bifurcated jury trial. 8 The trial court, therefore, did not err in this case by structuring the order of proof in this manner.

Affirmed.

8 Because Code § 19.2-297.1(A) allows recidi vism evidence to be admitted during the guilt phase, we do not address whether admitting such evidence in the sentencing phase would implicate the constitutional conc erns raised by th e concurrence.- 10 - Humphreys, J., concurring. I agree that Code § 19.2-297.1 should be cons trued as permitting the introduction of a defendant’s relevant prior felony convictions during the guilt phase of a bifurcated trial. Unlike the majority, however, I believe that the common law provides minimal guidance in this area beyond a historical starting point. Thus, I write separately to clar ify the relevant principles of statutory construction that I believe control the outcome of this case. I. The Plain Language of Code § 19.2-297.1 As an initial matter, we must consider the pl ain language of the statute, for “‘[w]here the legislature has used words of a plain and de finite import the courts cannot put upon them a construction which amounts to holding the le gislature did not mean what it has actually expressed.’” Barr v. Town & Country Props. , 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting Watkins v. Hall , 161 Va. 924, 930, 172 S.E. 445, 447 (1934)). That is, “[w]e must . . . assume that the legislature chose, with care, the words it used when it enacted the . . . statute, and we are bound by those words as we interpret the statute.” Id. Code § 19.2-297.1, the so-called “three-strike s” statute, provides as follows: Any person convicted of [1] two or more separate acts of violence [2] when such offenses were not part of a common act, transaction, or scheme, and [3] who has been at liberty as defined in § 53.1-151 between each conviction, shall, upon conviction of a third or subsequent act of violence, be se ntenced to life imprisonment and shall not have all or any portion of his sentence suspended, provided it is admitted, or found by the jury or the judge before whom he is tried, that he has been previously convicted of two or more such acts of violence

. (Emphasis added). By the express terms of the st atute, the jury (or other finder of fact) must therefore make three specific findi ngs before the statute is implicat ed. Specifically, the jury must find: (1) the defendant has at least two prior violent felony convictions, (2) the prior felonies- 11 - were not part of a common act, transaction, or scheme, and (3) the defendant was at liberty

between each of the felonies. See id. However, the plain language of the statute is silent as to whether these three facts should be “found” during the guilt phase or during the sent encing phase of the trial. Thus, we must consider other settled princi ples of statutory construction to determine whether Code § 19.2-297.1 permits the introduction of evidence relating to the defendant’s prior felony convictions during the guilt phase of a bifurcated trial. See Va. Dep’t of Labor & Indus. v.

Westmoreland Coal Co. , 233 Va. 97, 101, 353 S.E.2d 758, 762 (1987) (noting that, where a statute “is susceptible to more than one meaning,” the court “must resort to extrinsic evidence and the rules of construction to determine legisl ative intent, ‘the paramount object of statutory construction’” (quoting Vollin v. Arlington Co. Electoral Bd. , 216 Va. 674, 678-79, 222 S.E.2d 793, 797 (1976))). In doing so, we must be cogni zant that there is no hierarchy among rules of statutory construction. Rather, considering all relevant and applicable principles of statutory construction, we should select that interpretati on which, overall, best com ports with legislative

intent.

II. The “Common Law” As noted in the majority opinion, a statut e codifying common law principles should generally be interpreted in a manner “‘most near to the reason of the common law.’” Moses v.

Commonwealth , 45 Va. App. 357, 361 n.2, 611 S.E.2d 607, 609 n.2 (2005) ( en banc ) (quoting

Chichester v. Vass , 5 Va. (1 Call) 83, 102 (1797)). As the majority further notes, a statute that

codifies the common law “‘must th erefore be read along with the provisions of the common law, and the latter will be read into the statute unless it clearly appears from express language or by necessary implication that the purpose of the st atute was to change th e common law.’” Id. (quoting Wicks v. Charlottesville , 215 Va. 274, 276, 208 S.E.2d 752, 755 (1974)).- 12 - In my view, however, Code § 19.2-297.1 does not “codify[] common law principles.” As the majority opinion sets forth, re cidivist statutes have long been in existence in Virginia and elsewhere. However, the common law—as opposed to statutory law—did not authorize the imposition of heightened sentences for recidivist s. Nor did any of the recognized common law crimes ( e.g. , rape, robbery, arson, murder, burglary) require—or even allow—proof that the defendant was a recidivist. Code § 19.2-297.1 cannot be said to codify a common law rule that

does not exist. See De Gesualdo v. People , 364 P.2d 374, 378 (Or. 1961) (“The philosophical approach to the habitual criminal statute has al ways been that it is in derogation of the common law and must therefore be strictly cons trued.”); State ex rel. Ringer v. Boles , 157 S.E.2d 554, 558 (W. Va. 1967) (“Habitual criminal proceedi ngs providing for enhanced or additional punishment on proof of one or more prior conv ictions are wholly statutory. . . . Being in derogation of the common law, such statutes are generally held to require a strict construction in favor of the prisoner.”). 9 Because Code § 19.2-297.1 does not seek to co dify a recognized common law principle, the concept that a statute codifying the common la w “‘must [] be read along with the provisions of the common law,’” Moses , 45 Va. App. at 361 n.2, 611 S.E.2d at609 n.2 (citation omitted), is inapplicable. Thus, to the extent that the majority relies solely on what it calls the “common

9 Allowing the prosecution to present allegatio ns and proof of past convictions during a single trial, as opposed to during a second and s ubsequent proceeding, is sometimes referred to as the “common-law procedure” for impl ementing a recidivist statute. See Spencer v. Texas , 385 U.S. 554, 565 (1967). Even if we were to accept that this proce dure has somehow been elevated to common law status, it is of little help in resolving the issue presented in this appeal. That is, the so-called “common law” procedure allows recidivism to be decided during the same trial as the present, underlying charge. The “non-common-law” procedure, once codified in Virginia, requires recidivism to be decided during a separate, subse quent trial. Neither procedure speaks to whether recidivism may be decided during a separate phase of a singl e, bifurcated trial.- 13 - law,” I believe the majority is oversimplifying th e rather complex issue of statutory construction presented in this case. 10 III. Judicial Interpretation of Other Recidivist Statutes In Berry v. Commonwealth , 22 Va. App. 209, 468 S.E.2d 685 (1996), this Court held that, [a]lthough . . . evidence of other crimes is inadmissible if relevant only to show a probability of guilt or a propensity for criminal conduct, evidence of other crimes “is properly received if it is relevant and probative of an element on trial, such as an element of the offense charged or the re quired predicate for enhanced punishment.”

Id. at 213, 468 S.E.2d at 687 (quoting Pittman v. Commonwealth , 17 Va. App. 33, 35, 434 S.E.2d 694, 695 (1993)). Accordingly, under Berry , proof of a prior conviction is admissible during the guilt phase of a bifurcated trial if it is either: (1) an element of the offense charged, or (2) a required predicate for enhanced punishment. It is well established that, if a defendant is charged with violating a recidivist statute, proof of the defendant’s prior felony convictions is admissible as a “required predicate for enhanced punishment.” Id. (holding that the tria l court did not err in allowing evidence of a “prior conviction for a like offense . . . during the guilt phase of the trial,” reasoning that the evidence was admissible because, inter alia , it was a “necessary pred icate to an enhanced penalty”); see also Harris v. Commonwealth , 26 Va. App. 794, 803, 497 S.E.2d 165, 169 (1998) (“A prior conviction is used for ‘sentence enhancement’ when it is admitted . . . during trial to

10 Of course, this does not mean that the many cases construing Virginia ’s other recidivist statutes are entirely inapplicable. The General Assembly may certainly be said to have been aware of the construction and effect given to pr ior recidivist statutes when it enacted Code § 19.2-271.1. To that end, those cases are releva nt—though not dispositive—when delving into the issue of legisl ative intent. See Part III, infra

.- 14 - convict a defendant of violating a ‘recidivist statute,’ i.e., a statute that criminalizes the

commission of a successive violati on of a particular offense[.]”). Moreover, this Court and the Virginia Suprem e Court have consistently held that, for a

defendant to be convicted under a re cidivist statute, the prior convi ctions must be charged in the indictment and proved to the jury. See, e.g. , Farmer v. Commonwealth , 10 Va. App. 175, 180, 390 S.E.2d 775, 777 (1990) (“For the h eavier punishment to be imposed by the jury or the court trying the case without a jury, the prior offense must be ch arged and proven.” (internal quotations omitted)); see also Brown v. Commonwealth , 226 Va. 56, 58-59, 307 S.E.2d 239, 240 (1983) (“[T]o make the accused subject, under a re peating-offender statute, to a heavier penalty . . . the previous conviction must be alleged in the indictment . . . .”); Calfee v. Commonwealth , 215 Va. 253, 255, 208 S.E.2d 740, 741 (1974); Commonwealth v. Ellett , 174 Va. 403, 409, 4 S.E.2d 762, 754 (1939). Because the prior convicti ons necessary to sustain a conviction under a recidivist statute must be charged in the indictment, we have theref ore held that proof of the prior conviction is admissible during the guilt phase of the trial because it is an element of the “aggravated” recidivist offense. See Berry , 22 Va. App. at 213, 468 S.E .2d at 687 (holding that evidence of prior convictions was admissible, reasoning that, inter alia , “[c]onviction of a prior like offense is an element of the charge as it was set forth in the indi ctment . . .”); see also

Pittman , 17 Va. App. at 35-36, 434 S.E.2d at 695 (holdi ng that the trial court did not err in admitting proof of six prior convictions, reasoning that, “[t]o prove the charge set forth in the indictment, the Commonwealth was obligated to prove that [the defendant] was guilty of a third or subsequent offense”); Farmer , 10 Va. App. at 179, 390 S.E.2d at 776 (holding that proof of a prior conviction is “necessary to prove the substantive offense of driving under the influence as a third or subsequent offense and, therefore, is admissible during the guilt stage of a bifurcated trial”).- 15 - Thus, according to earlier judicial interpretations of similar recidivist statutes, proof of a defendant’s prior like convictions is admissible during the guilt phase of the trial because it is both a required predicate for enhanced punishment and an element of the offense charged. See,

e.g. , Berry , 22 Va. App. at 213, 468 S.E.2d at 687. This rule was established well before the 1994 enactment of both Code § 19.2-297.1 and the bi furcation statute, Code § 19.2-295.1. See,

e.g. , Brown , 226 Va. at 58, 307 S.E.2d at 240 (decided in 1983); Pittman , 17 Va. App. at 35-36, 434 S.E.2d at 695 (decided in 1993); Farmer , 10 Va. App. at 179, 390 S.E.2d at 776 (decided in 1990). Because the General Assembly may be presumed to have knowledge of the judicial interpretation of other, similar statutes, it can be inferred that, had the General Assembly wished to alter existing law, it would have so provided. See Waterman v. Halverson , 261 Va. 203, 207, 540 S.E.2d 867, 869 (2001) (“The General Assembly is presumed to be aware of the decisions of this Court when enacting legislation.” (citi ng Dodson v. Potomac Mack Sales & Serv., Inc. , 241 Va. 89, 94, 400 S.E.2d 178, 180 (1991))); cf. Tazewell County Sch. Bd. v. Brown , 267 Va. 150, 163, 591 S.E.2d 671, 677 (2004) (“We have repeatedly held that the General Assembly is presumed to have knowledge of the . . . interpre tation of statutes, and the General Assembly’s

failure to make corrective amendments evinces le gislative acquiescence in [that interpretation].” (internal quotations omitted)).

IV. Constitutional Considerations Also, “where a statute is su sceptible of two constructions , by one of which grave and doubtful constitutional questions arise and by the ot her of which such questions are avoided, our duty is to adopt the latter.” Un ited States v. Delaware & Hudson Co. , 213 U.S. 366, 408 (1909);

see also Va. Soc’y for Human Life v. Caldwell , 256 Va. 151, 157, 500 S.E.2d 814, 816 (1998) (“‘[A] statute will be construed in such a manner as to avoid a constitutional question wherever this is possible.’” (quoting Eaton v. Davis , 176 Va. 330, 339, 10 S.E.2d 893, 897 (1940))). Here,- 16 - adopting the construction of the th ree-strikes statute urged by th e defendant would raise “grave and doubtful constitutional questions ” about the continuing viability of the three-strikes scheme. The United States Supreme Court has recently re-affirmed the fundamental constitutional principle that: “Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts esta blished by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” United States

v. Booker , 125 S. Ct. 738, 756 (2005); see also Blakely v. Washington , 124 S. Ct. 2531, 2536 (2004); Ring v. Arizona , 536 U.S. 584, 589 (2002); Apprendi v. New Jersey , 530 U.S. 466, 491 (2000); Jones v. United States , 526 U.S. 227, 243 (1999). 11 This rule is grounded in the premise that “the Constitution protects every criminal defendant ‘aga inst conviction except upon proof beyond a reasonable doubt of every fact nece ssary to constitute the crime of which he is charged.’” Booker , 125 S. Ct. at 748 (quoting In re Winship , 397 U.S. 358, 364 (1970)); see also

United State v. Gaudin , 515 U.S. 506, 511 (1995) (noting that the “Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged”). However, the Supreme Court has expressly reje cted a rule that would require “elements of the offense” to be proven to a jury beyond a reasonable doubt, while exempting “sentencing factors” from the same requirement. See Ring , 536 U.S. at 604-05 (“Apprendi repeatedly

11 If proof of the fact would not enhanc e the sentence beyond the statutory maximum, then that fact need not be proven to the jury beyond a reasonable doubt. See Booker , 125 S. Ct. at 750 (“[W]hen a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a ju ry determination of the facts that that judge deems relevant.” (emphasis added)); Apprendi , 530 U.S. at 481 (“[N]othing . . . suggests that it is impermissible for judges to exercise discretion . . . in imposing a judgment within the range prescribed by statute.” (emphasis in original)); see also McMillan v. Pennsylvania , 477 U.S. 79, 84 (1986) (rejecting argument “tha t whenever a State links the ‘s everity of punishment’ to ‘the presence or absence of an identified fact’ th e State must prove that fact beyond a reasonable doubt” (citing Patterson v. New York , 432 U.S. 197, 214 (1977)).- 17 - instructs . . . that the characteri zation of a fact or circumstance as an ‘element’ or a ‘sentencing factor’ is not determinative . . . .”). Rather, “[i]f a State makes an increase in a defendant’s authorized punishment contingent on the findi ng of a fact, that fact —no matter how the State labels it—must be found by a jury beyond a reasonable doubt.” Id. at 602 (citing Apprendi , 530 U.S. at 482-83). Thus, “[t]he dispositive question . . .‘is not one of form, but of effect.’” Id. (quoting Apprendi , 530 U.S. at 494); see also Booker , 125 S. Ct. at 748 (“[T]he characterization

of critical facts is constitu tionally irrelevant.”); Ring , 536 U.S. at 610 (Sca lia, J., concurring) (“[T]he fundamental meaning of th e jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishme nt that the defendant receives—whether the statute calls them elements of the offense, se ntencing factors, or Mary Jane—must be found by the jury beyond a reason able doubt.”); Apprendi , 530 U.S. at 476 (“Merely using the label ‘sentence enhancement’ . . . surely does not prov ide a principled basis for treating [those facts] differently.”). The Virginia “three-strikes” st atute requires proof of: (1) tw o prior convictions; (2) that were not part of a common act, transaction, or scheme; (3) that were committed while the defendant was “at liberty.” Unque stionably, these are “facts” that , if proven, may “increase[] the penalty for a crime beyond the prescribed statutory maximum . . . .” Apprendi , 530 U.S. at 491;

see also Blakely , 124 S. Ct. at 2537 (“[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the fa cts reflected in the jury verdict or admitted by the defendant .” (emphasis in original)). Accordingly, with the exception of the fact of the prior convi ctions, these elements must be proven to the jury beyond a

reasonable doubt. 12

12 The “other than a prior convi ction” language from Apprendi has its roots in Almendarez-Torres v. United States , 523 U.S. 224 (1998), a case in which the Supreme Court held that the fact of a prior conviction may be found by a judge, using a preponderance of the- 18 - However, as the majority notes, there is no standard of proof during a sentencing proceeding. Nor does the jury make any express findings of fact prior to selecting a sentence from the available range of punishment. Accordi ngly, if this Court were to hold that proof of prior convictions—and, of necessity, proof that th e prior convictions were not part of a common act and were committed while the defendant was at liberty—is inadmissible during the guilt phase of a trial, we would effectively be depriving the defendant of his constitutional right to have these elements proven to a jury beyond a reasonable doubt. See Estes v. Texas , 381 U.S. 532, 543 (1965) (“Every procedure wh ich would offer a possible temptation to the average man . . . to forget the burden of proof required to co nvict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accuse d, denies the latter due process of law.” (interna l quotations omitted)). Thus, where a defendant is charged with viol ating the three-strikes statute, disallowing proof of the defendant’s prior c onvictions during the gui lt phase of the trial would give rise to “grave and doubtful constitutional questions.” Delaware & Hudson Co. , 213 U.S. at 408. To avoid implicating these constitutional issues, the three-strikes statute should be construed as allowing introduction of evidence relating to a de fendant’s prior convictions during the guilt phase of the trial. See id. ; see also Bd. of Supervisors v. Telecomm. Indus., Inc. , 246 Va. 472, 478, 436 S.E.2d 442, 445 (1992) (“Statutory constructi ons that make a statute unconstitutional should be avoided.” (citing Jeffress v. Stith , 241 Va. 313, 317, 402 S.E.2d 14, 16 (1991))).

V. Conclusion Code § 19.2-297.1 does not expressly delineate the phase of trial during which evidence relating to the defendant’s prior convictions shou ld be admitted. However, where a defendant is

evidence standard, even if the f act of the prior conviction increas es the statutory maximum. In Apprendi , the majority described Almendarez-Torres as “representing at best an exceptional departure from the historic practice th at we have desc ribed.” Apprendi , 530 U.S. at 487.- 19 - charged with violating a recidivi st statute, this Court and th e Virginia Supreme Court have consistently required those prior convictions to be charged in the indictment and have permitted introduction of the prior convictions during the guilt phase of a bifurcated trial. Moreover, construing the statute so as to disallow introduc tion of prior convictions during the guilt phase of trial might lead to unintended constitutional results . Accordingly, I agree that the trial court did not err in admitting, with a cautionary instruc tion, Washington’s prior convictions during the guilt phase of his trial, and I therefore concur in the result reached by the majority.- 20 - Benton, J., with whom Fitzpatrick, C.J., joins, dissenting. Code § 18.2-51 provides that “if any person maliciously wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony.” In pertinent part, Code § 19.2-297.1 provides as follows: A. Any person convicted of two or more separate acts of violence when such offenses were not part of a common act, transaction or scheme . . . shall, upon conviction of a third or subsequent act of violence, be sentenced to life impr isonment and shall not have any portion of the sentence suspended, provided it is admitted, or found by the jury or judge before whom he is tried, that he has been previously convicted of two or more such acts of violence.

* * * * * * *

B. Prior convictions shall include convictions unde r the laws of any state or of the United States for any offense substantially similar to those listed under “act of violence” if such offense would be a felony if committed in the Commonwealth.

The Commonwealth shall no tify the defendant in writing, at least thirty days prior to trial, of its intention to seek punishment pursuant to this section. This appeal concerns the mean ing and applications of these statutes, not the common law. In applying these statutes, we are guided by well established principles. Under basic rules of statutory construction, we determine the General Assembly’s intent from the words contained in the statute. When the language of a statute is plain and unambiguous, courts are bound by the plain meaning of that language. Thus, when a statute’s language is unambi guous, courts cannot give that language a construction that amount s to holding that the General Assembly did not mean what it actually has stated. Volkswagen of America v. Smit , 266 Va. 444, 452, 587 S.E.2d 526, 531 (2003) (citations omitted). See also Burlile v. Commonwealth , 261 Va. 501, 511, 544 S.E.2d 360, 365 (2001) (holding that when a statute has words of a plai n import courts cannot construe them in a way that varies the plain meaning of the language). In other words, c ourts are bound by the plain- 21 - meaning of clear, unambiguous stat utory language. Pope v. Commonwealth , 19 Va. App. 130, 132, 449 S.E.2d 269, 270 (1994). Nothing in Code § 18.2-51, the statute pros cribing malicious woundi ng, provides that the occurrence of prior, separate acts of violence ar e elements of the offens e of malicious wounding. Likewise, Code § 19.2-297.1, the statute that defines th e effect of prior, separate acts of violence, does not provide that these acts are elements of the offense proscribed by Code § 18.2-51. By its plain meaning, Code § 19.2-297.1 unambiguously applies during punishme nt only after the

defendant has been convicted of a substantiv e offense. It expressly applies only “upon

conviction of a third or subsequent act of violence ,” and it provides that the convicted person

“shall . . . be sentenced to life imprisonment” upon the terms of the statute. Code § 19.2-297.1 (emphasis added). Significantly, Code § 19.2-29 7.1 also provides that the prosecutor must “notify the defendant in writing, at least thirty days prior to tr ial, of its intention to seek punishment pursuant to this section.” (Emphasis added). In short, Code § 19.2-297.1 unambiguously rela tes to the punishment to be imposed upon conviction. Reinforcing its clear, unambi guous language, the legislature enacted Code § 19.2-297.1 in Title 19.2, Chapter 18, of the Code of Virginia under the heading “Sentence; Judgment; Execution of Sentence.” It is the only penalty enhanci ng statute in that chapter. Equally significant is the placement of this statute in the same title of the Code of Virginia as Code § 19.2-295.1, which provides for the bifurcati on of trials in which evidence of prior criminal convictions is admitted during the punishment phase. 13

13 In pertinent part, Code § 19.2-295.1 provides as follows: In cases of trial by jur y, upon a finding that the defendant is guilty of a felony . . . a separate proceeding limited to the ascertainment of punishment shall be held as soon as practicable before the same jury. At such proceeding, the Commonwealth shall present the defendant’s prior criminal convictions by- 22 - Looking to the common law, the majority concludes that recidivism evidence has traditionally been presented during the guilt phase of trial. Even if that be true, it bears repeating

that the issue before us concerns a statute that expressly applies only “upon conviction of a third offense or subsequent act of violence” and prov ides that the convicted person “shall . . . be

sentenced to life imprisonment” upon th e terms of the statute. Code § 19.2-297.1. The very language of Code § 19.2-297.1 is exp licit evidence that th e legislature did not intend to codify the common law principles that the majority relies upon.

The common law is further rendered irrelevant to this issue because a statute , Code § 19.2-295.1, provides for the bifurcation of trials in Virginia and requires evidence of prior criminal convictions be admitted during the punish ment or sentencing phase. Read together, Code § 19.2-297.1 and Code § 19.2-295.1 manifest the conclusion that the le gislature intended that prior convictions be pr oved only during the punishment phase when the purpose is to establish a sentencing factor. Read ing together statutes that relate to the same subject matter has not heretofore been deemed a “judicial graft,” but rather application of we ll-settled principles of statutory construction. The Suprem e Court discussed these principles in depth almost fifty years

ago: The general rule is that statutes may be considered as in pari materia when they relate to the same person or thing, the same class of persons or things or to the same subject or to closely connected subjects or objects. Statutes which have the same general or common purpose or are pa rts of the same general plan are also ordinarily considered as in pari materia . 50 Am. Jur., Statutes, § 350, p. 347.

certified, attested or exemplified co pies of the record of conviction, including adult convictions a nd juvenile convictions and adjudications of delinquency. Prior convictions shall include convictions and adjudications of delinquency under the laws of any state, the District of Columbia, th e United States or its territories.- 23 - In 50 Am. Jur., Statutes, § 349, pp. 345, 346, 347, it is said: “Under the rule of statutory construction of statutes in pari materia, statutes are not to be c onsidered as isolated fragments of law, but as a whole, or as part s of a great connected, homogeneous system, or a single and complete statutory arrangement. Such statutes are considered as if they constituted but one act, so that sections of one act may be considered as though they were parts of the other act, as far as this can reasonably be done. Indeed, as a general rule, where legislation de aling with a particular subject consists of a system of related general provisions indicative of a settled policy, new enactments of a fragmentary nature on that subject are to be taken as intended to fit into the existing system and to be carried into effect conf ormably to it, and they should be so construed as to harmonize the general tenor or purport of the system and make the scheme consistent in all its parts and uniform in its operation, unless a different purpose is shown plainly or with irresistible clearness. It will be assumed or presumed, in the absence of words specifically in dicating the contrary, that the legislature did not intend to i nnovate on, unsettle, disregard, alter or violate a general statute or sy stem of statutory provisions the entire subject matter of which is not directly or necessarily involved in the act.” See also 17 M.J., Statutes, § 40, p. 293, 82 C.J.S., Statutes, § 365, p. 799.

The author of Sutherland Statut ory Construction, 3rd Ed., In Pari Materia and Adopted Statutes, Vo l. 2, § 5201, p. 529 has this to say: “Provisions in an act which are omitted in another act relating to the same subject matter will be applied in a proceeding under the other act, when not incons istent with its purposes.”

In Mitchell v. Witt , 98 Va. 459, 461, 36 S.E. 528, the court stated:

“Statutes which are not inconsis tent with one another, and which relate to the same subject matter, are in pari materia , and should be construed together; and effect should be given to them all, although they contain no reference to one another, and were passed at different times. Especially shoul d effect be given, if possible, to statutes in pari materia enacted at the same session of the Legislature.” This principl e was quoted with approval in Commonwealth v. Sanderson , 170 Va. 33, 39, 195 S.E. 516. Cf. Wilson v. State , 117 Tex. Crim. Rep. 63, 36 S.W.2d 733. In Seaboard Finance Corporation v. Commonwealth , 185 Va. 280, 286, 38 S.E.2d 770, we said:- 24 - “It is a cardinal rule of cons truction that statutes dealing with a specific subject must be construed to gether in order to arrive at the object sought to be accomplished.”

Prillaman v. Commonwealth , 199 Va. 401, 405-06, 100 S.E.2d 4, 7-8 (1957). Accord Lucy v. County of Albemarle , 258 Va. 118, 129-30, 516 S.E.2d 480, 485 (1999). As the majority opinion notes, the Gene ral Assembly enacted Code § 19.2-295.1 and Code § 19.2-297.1 in the same bill. We can presume, therefore, that the General Assembly

intended that the statutes were to be understood as “imbued with the same spirit and actuated by the same policy.” Lilliard v. Fairfax Airport Authority , 208 Va. 8, 13, 155 S.E.2d 338, 342 (1967). Indeed, the principle is long standing “that where two statutes are passed by the same session of the legislature, as was the case here, th at fact furnishes strong evidence that they were intended to stand together.” South Norfolk v. Norfolk , 190 Va. 591, 602, 58 S.E.2d 32, 37 (1950). This principle is to be followed even if the statutes “cont ain no reference to one

another.” Prillaman , 199 Va. at 406, 100 S.E.2d at 7. Simply put, both statutes are concerned with pr oof of prior convictions that are to be used as a sentencing factor. Code § 19.2-295.1 re quires “a separate proceeding limited to the ascertainment of punishment” after a finding of guilt. Code § 19.2-297.1 specifies punishment for a “person convicted of two or more separa te acts of violence.” The suggestion that the General Assembly did not intend these two statut es to stand together does not stand close analysis and certainly finds no foundation in the common law. 14 Indeed, read together, the

14 As Judge Humphreys aptly notes in Pa rt II of his concurring opinion, Code § 19.2-297.1 is an habitual criminal punishment stat ute that is in deroga tion of the common law and must be strictly construed in favor of the accu sed. When we strictly construe penal statutes, we must give “the accused . . . the benefit of any reasonable doubt about the construction of [the] statute,” Martin v. Commonwealth , 224 Va. 298, 300-01, 295 S.E.2d 890, 892 (1982), and we “must . . . presume[] that the [General Asse mbly] acted with full knowledge of the strict interpretation that must be placed upon a statute of this nature,” Hannabass v. Ryan , 164 Va. 519, 525, 180 S.E. 416, 418 (1935).- 25 - statutes plainly manifest a codi fication of procedures in deroga tion of any common law “order of proof” that may have existed. The statutes contain no conflic ting language; they can be and should be reconciled and construed together. Simp ly put, the principles re levant to this appeal

are to be found in our current scheme of jurisprudence. Unlike the majority opinion, the Commonwealth does not rely upon the common law but, instead, contends that the phrase “found by the jury,” which is contained in Code § 19.2-297.1, implies that the fact finder must make a fi nding that the defendant has twice before been convicted of violent offenses prescribed by the stat ute. I agree with this assertion, as far as it goes. The statutory language, however, does not require that the prior conviction evidence be admitted during the guilt phase of trial. Rather, it expressly provides that “ upon conviction of a third or subsequent act of violence” that pers on shall be sentenced to life imprisonment, “provided it is admitted, or found by the jury or j udge before whom [the de fendant] is tried, that he has been previously convicted of two or more . . . acts of violence.” Code § 19.2-297.1 (emphasis added). This statute me rely requires the pros ecutor to prove as an adjunct to the fact of the prior conviction the addi tional facts the Genera l Assembly deemed to be necessary to obtain the enhanced penalty. By the express language of Code § 19.2-297.1, those facts are statutorily made relevant to the penalty to be imposed. They are appropriately the subject of a finding instruction, see Joseph v. Commonwealth , 249 Va. 78, 89-90, 452 S.E.2d 862, 869-70 (1995) (discussing finding instruct ions concerning punishment), and require no extraordinary procedure at the punishment phase. Consistent with Code § 19.2-295.1 (and Rule 3A:17.1), this is evidence for enhancing punishment that is admissible and appropriate for the jury’s determination at the pun ishment phase of trial. 15 Therefore, the trial judge must instruct the jury

15 Prior to the enactment of Code § 19. 2-295.1, the Supreme Court held in Brown v. Commonwealth , 226 Va. 56, 59, 307 S.E.2d 239, 241 (1983), thatan accused was not denied due process when, during a trial that consolidated the issues of guilt and punishment, the jury was- 26 - at the punishment phase (see Code § 19.2-295.1 -- where the Commonwealth “present[s] the defendant’s prior criminal convictio ns”) that it must find these a dditional facts if it is to impose the enhanced punishment required by Code § 19.2-297.1. The Commonwealth also relies on Berry v. Commonwealth , 22 Va. App. 209, 468 S.E.2d 685 (1996), to support its propositio n that Code § 19.2-297.1 must be read to provide that the prior convictions are elements of the offense a nd, therefore, evidence of those convictions is properly submitted to the jury during the guilt phase of the trial. The short answer to this argument is that Berry does not require that we hold that Code § 19.2-297.1 is an element of the offense of malicious wounding because Berry concerned an entirely di fferent statute, Code § 18.2-248. The Berry decision dealt with the issue whet her a defendant’s prior narcotics convictions under Code § 18.2-248 were properly adm itted to the jury during the guilt phase of

the bifurcated trial in a third narcot ics prosecution under Code § 18.2-248. Berry , 22 Va. App. at 213, 468 S.E.2d at 687. Unlike Code § 18.2-51 and Code § 19.2-297.1, the stat utes at issue in this case, Code § 18.2-248, which wa s the statute at issue in Berry , provides for the substantive offense as well as for the penalty enhancement for a subsequent offense within the same statute. In Berry , we relied upon this inclusio n of the penalty enhancement in the same statute which

informed of previous convictions required for an enhanced punishment. In so holding, the Court noted that the trial judge cautio ned the jury not to consider the previous convictions in determining guilt and, significantly, the Court noted the following: Brown sought a bifurcated trial, but there is no statutory authorization for such a procedure in this case. Bifurcated trials have been provided by statute only in capital murder cases, Code § 19.2-264.3, and in certain traffic cases, Code § 46.1-347.2. There may be sound arguments for th e extension of such trials to other offenses in Virginia, but these arguments should be addressed to the General Assembly. Id. at 59, 307 S.E.2d at 240-41 (footnote omitted). Eleven years later, in 1994, the General Assembly provided for bifurcated trials in felony prosecutions such as this.- 27 - creates the substantive crime in determining that the penalty enhancement was an element of the

offense. Recently, in Medici v. Commonwealth , 260 Va. 223, 532 S.E.2d 28 (2000), the Supreme Court held that introducing evidence of prior convictions at the guilt phase of trial did not violate

a defendant’s constitutional right to due process under the Fourteenth Amendment. Id. at 227-28, 532 S.E.2d at 31 (citing Brown v. Commonwealth , 226 Va. 56, 59, 307 S.E.2d 239, 241 (1983)). Supporting its holding that no due process violation occurr ed, the Court noted that the trial judge in Medici instructed the jury to consider the prior convictions only as evidence of a prior conviction and not as evidence of the defe ndant’s guilt. Id. at 229, 532 S.E.2d at 32. The Court, however, specifically dec lined to address “wheth er the better policy would be to introduce a prior conviction into evidence only during the sentencing phase . . . [or] whether a prior conviction is an element of the offense charged.” Id. The Court declined to do so because the issue raised by Medici dealt solely with whether his c onstitutional due process rights were

violated. Id. In simple terms, the Supreme Court declined to decide the state-law issue in Medici because Medici raised only a federal constitu tional due process issue. The United States Supreme Court has recognized the proposition that, although it is us ually the case that prejudice is necessary to establish a violation of due process, see Estes v. Texas , 381 U.S. 532, 542-43 (1965); Hamilton v. Alabama , 368 U.S. 52, 55 (1961), a claim of prejudice is not virtually identical to a claim of a due pr ocess violation. As the Court ha s noted, “proof of prejudice is generally a necessary but not su fficient element of a due process claim.” United States v.

Lovasco , 431 U.S. 783, 790 (1977). Unlike the majority here, I believe the statut e’s notice requirement, our bifurcated trial procedure, and the use of recidivism as a cl assic sentencing factor (reflecting society’s- 28 - determination that a defendant deserves enhanced punishment after a third conviction) provide

additional indications that th e legislature intended Code § 19.2-297.1 to function as part of Virginia’s sentencing scheme. Quite simply, to conclude that the cr ime of malicious wounding

includes the element of a sentenci ng aggravator, unrelated to the ch arged crime, is illogical. The Supreme Court’s decision in Spencer v. Texas , 385 U.S. 554, 572 (1967), does not require that we read Code § 19.2-297.1 in such a manner. Like Medici , Spencer dealt with the due process issue of allowing a defendant’s prior convictions during the guilt phase, and not an issue of statutory construction. 385 U.S. at 559. Significantly, the Cour t noted that prior conviction “evidence is generally recognized to have potentiality for prejudice.” Id. at 560. The Court deferred, however, to the procedures adopted unde r each state’s “complex code of state criminal evidentiary law” as the mechanism for ameliorating the prejudice. Id. at 562. In a concurring and dissenting opinion, Chie f Justice Warren noted that, as a logical proposition, “[t]he admission [of pr ior convictions] in connection with enhancing punishment for repeating offenders has nothing wh atever to do with the question of guilt or innocence of the crime currently charged.” Id. at 579. He further obs erved the following: Because of the complete irreleva nce of prior convictions to the question of guilt or innocence, the recidivist situation is not one where the trial courts are calle d upon to balance the probative value of prior convictions agains t their prejudicial impact. The purpose of admitting prior-convictions evidence should be served and prejudice completely avoided by the simple expedient of a procedure which reflects the excl usive relevance of recidivist statutes to the issue of proper puni shment. Only after a defendant has been found guilty does the question of whether he fits the recidivist category become relevant to the sentence, and any issue of fact as to his prior convicti ons should then be decided by the jury.

Id. These observations are apt because we have in Virginia a statutorily mandated system of bifurcated trials. The Supreme Court of Virg inia recognized this, and the irrelevance of a- 29 - defendant’s prior convictions during the guilt phase, in Medici , when it posed without answering the question “whether th e better policy would be to introduc e a prior conviction into evidence only during the sentencing phase . . . [or] whether a prior conviction is an element of the offense charged.” 260 Va. at 229, 532 S.E.2d at 32. C ontrarily, the majority concludes that the

recidivist statute mandates that a defendant’s prior convictions must be proven during the prosecution’s case-in-chief. This construction of the statute ignores the irrelevance of Washington’s prior conviction to the question of guilt or innocence of the malicious wounding charge. Furthermore, it creates a procedure by which the Commonwealth will needlessly and unfairly benefit from the prejudicial effect of the prior convictions. A “bedrock principle of Anglo-Amer ican jurisprudence,” see generally , 1 John H. Wigmore, A Treatise On The Anglo-American Sy stem Of Evidence In Trials At Common Law , §§ 55-68a, at 449-91 (3d ed. 1940), is the recogniti on of the prejudice of a defendant’s prior

convictions. The State may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrele vant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad genera l record and deny him a fair opportunity to defendant agains t a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.

Michelson v. United States , 335 U.S. 469, 475-76 (1948) (Jackson, J ., concurring). Virginia has of course recognized this long standing prohibiti on against admitting prior crimes. Absent some exception to the general rule, “evidence implicati ng an accused in other crimes unrelated to the charged offense is inadmissible because it may confuse the issues bei ng tried and cause undue prejudice to the defendant .” Guill v. Commonwealth , 255 Va. 134, 138, 495 S.E.2d 489, 491- 30 - (1998); Limbaugh v. Commonwealth , 149 Va. 383, 383, 140 S.E. 133, 135 (1927) (noting that “[t]he accused comes to trial to meet the specific charge agains t him, not to vindicate or to explain every collateral charge that may be ma de in the course of the introduction of the evidence”). I cannot conclude, as does the majority, th at the legislature in tended to needlessly prejudice a defendant by enact ing Code § 19.2-297.1. The princi ple is well established that evidence of other crimes, admitted in the prosec ution’s case-in-chief, creates undue prejudice, reverses the presumption of innocence, and cons titutes reversible erro r, notwithstanding the absence of a claim of a due pro cess violation. Lewis v. Commonwealth , 225 Va. 497, 501-02, 303 S.E.2d 890, 893 (1983). See also Donahue v. Commonwealth , 225 Va. 145, 156, 300 S.E.2d 768, 774 (1983). “The principle that there is a presumption of i nnocence in favor of the accused is the undoubted law, axiomatic and elementary, a nd its enforcement lies at the foundation of the

administration of our criminal law.” Coffin v. United States , 156 U.S. 432, 453 (1895). Even evidence of a defendant’s prior misconduct “will usually sink the defense without [a] trace,” Edward Imwinkelried, Uncharged Misconduct Evidence § 1:02 (2004) (citing Elliott, The Young

Person’s Guide to Similar Fact Evidence , 1983 Crim. L. Rev. 284), while evidence of prior crimes is “the most prejudicial evidence imaginable against an accused.” Id. (quoting People v.

Smallwood , 722 P.2d 197, 205 (Cal. 1986) (superseded by Cal. Evid. Code § 1108). This basic foundation of our jurisprudence is inconsistent with allowing prior convictions as evidence during the guilt phase under the guise of concluding that it is warranted because the

statute at issue is a recidivist st atute. Citing Apprendi v. New Jersey , 530 U.S. 466, 490 (2000), and Blakely v. Washington , 542 U.S. ___, 124 S. Ct. 2531 (2004), the Commonwealth suggests it is a kind of constitutional imperative to require the proof of prior convictions during the guilt phase. Yet, the Commonwealth’s analysis conflates th e rationale supporting those cases. The- 31 - Apprendi line of cases upholds the sanctity of a defendant’s right to a trial by jury and the defendant’s due process right to require the Co mmonwealth to prove each element of the crime beyond a reasonable doubt. See In re Winship , 397 U.S. 358, 364 (1970). To claim that Washington’s due process rights are protected, as in Apprendi and Blakely , is simply not tenable. Here, introducing Washington’s prior convictions during the guilt phase needlessly prejudiced Washington without advancing a ny legitimate interest of th e State. Simply put, the Commonwealth, not Washington, will benefit from the introduction of the prior convictions. Pointlessly, in light of our system of bifurcat ed jury trials. That system was designed to eliminate the undue prejudice of putting before th e jury at the guilt stage evidence of other crimes, which has the effect of stigmatizing a de fendant and predisposing a jury to a finding of guilt. Although the trial judge in structed the jury durin g the guilt phase that “[e]vidence that the defendant was previously convicted of prior o ffenses should be considered by you only for proof of the element of a prior convicti on and not as proof that he committed the offense to which he is charged,” the trial judge also instructed the jury, in pertinent part, as follows:

The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime: (1) That the defendant wounded or caused bodily injury by any means to Kathleen Monroe; and (2) That such wounding or bodily injury was with intent to maim, disfigure, disa ble or kill Kathleen Monroe; and (3) That the act was done with malice; and (4) That the defendant has b een previously convicted of two violent felonies. If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt eac h of the above elements of the offense as charged, then you sh all find the defendant guilty of maliciously wounding or causing bodily injury.- 32 - The first instruction cannot be reconciled with the latter finding instruction because the finding instruction tells the jury th at the previous convictions are “e lements of the crime,” i.e., if those previous convictions are pr oved they constitute proof that he committed the offense with which he is charged. The normal presumption is th at the jury will follow a curative instruction. Greer v. Miller , 483 U.S. 756, 766 n.8 (1987). However, this presumption cannot apply when the curative instruction fails by its own terms to address the error.

United States v. Hall , 989 F.2d 711, 717 (4th Cir. 1993). Furthermore, the error in admitting the evidence at the guilt phase was so deliberate and so impressive that, despite the attempt at a cura tive instruction, the erro r likely influenced the jury. As the Supreme Court has held, “there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitati ons of the jury system cannot be ignored.”

Bruton v. United States , 391 U.S. 123, 135 (1968). An appellate court cannot presume the jury

followed a curative instruction when there “ex ist[s] the overwhelming probability of their inability to do so,” Richardson v. Marsh , 481 U.S. 200, 208 (1987), or when there “are deliberately spread before the ju ry . . . incriminations devast ating to the defendant,” Bruton , 391 U.S. at 136. In view of our bifurcated trial proc edure, we are not free to ignore that legislatively mandated protection and needlessly accep t the inevitable potential for prejudice. For all of these reasons, I w ould hold that the statute, by it s express terms, applies after

the conviction. The absence of a constitutiona l due process prohibition to allowing prior convictions does not, in my mi nd, equate to a license to do so. Nothing in Code § 19.2-297.1 requires us to construct the statute in such a way to prejudice Washi ngton, and countless other defendants, for no purpose except to give the Co mmonwealth the unfair advantage of presenting prior convictions to the jury as it assesses a defendant’s guilt or innocence. I dissent.Tuesday 23rd November, 2004.

Phillip Morris Washington, Appellant, against Record No. 1734-03-4 Circuit Court Nos. CR01000321-00 and CR01000321-01 Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc Before Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner, Frank, Humphreys, Clements, Fe lton, Kelsey and McClanahan

On November 8, 2004 came the appellee, by the Attorney General of Virginia, and filed a petition praying that the Court se t aside the judgment rendered here in on October 26, 2004, and grant a rehearing en banc thereof. On consideration whereof, the petition for rehearing en banc is granted, the mandate entered herein on October 26, 2004 is stayed pending the decision of the Court en banc , and the appeal is

reinstated on the docket of this Court. The parties shall file briefs in compliance with Rule 5A:35. The appellee shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion pr eviously rendered by the

Court in this matter. It is further ordered that the appellee shall file with the clerk of this Court twelve additional copies of the appendix previously filed in this case. A Copy,

Teste: Cynthia L. McCoy, Clerk By: Deputy ClerkCOURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatric k, Judges Benton and McClanahan Argued by teleconference

PHILLIP MORRIS WASHINGTON OPINION BY v. Record No. 1734-03-4 J UDGE JAMES W. BENTON, JR. OCTOBER 26, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF STAFFORD COUNTY Ann Hunter Si mpson, Judge Joseph Taylor Brown (Simmons, Brown & Kane, P.L.C., on brief), for appellant. Eugene Murphy, Assistant Attorn ey General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

A jury convicted Phillip Morris Washingt on upon an indictment charging that he committed a malicious wounding “after having been twice convicted of a violent felony,” in violation of Code § 18.2-51 and § 19.2-297.1, an d that he committed a wounding during the commission of a felony in violati on of Code § 18.2-53. On appeal , Washington contends that the trial judge erred in permitting th e prosecutor to prove two prior robbery convictions during the guilt phase of the bifurcated trial. We hold that the felony convictions, which must be proved to invoke Code § 19.2-297.1, are not elements of th e malicious wounding offense proscribed by Code § 18.2-51. We, therefore, reverse th e conviction and rema nd for a new trial.

I. Prior to trial, Washington filed a motion in limine to prohibit the prosecutor from introducing evidence of hi s prior violent felony convictions du ring the guilt phase of the trial.

His motion asserts that this “evidence is not ‘rele vant and probative of . . . an element of the- 2 - offense’” and that “it would be unduly prejudic ial for the Commonwealth to refer to such evidence before any finding of guilt.” The Comm onwealth argued “that is an element of its proof in its case-in-chief.” The trial judge denied Washi ngton’s motion, ruling that the

Commonwealth had the burden of proving the two prior violent fe lony convictions and that the jury was required to make the factual findi ng during the guilt phase of trial. During the

Commonwealth’s case-in-chief at the guilt phase of the trial, the prosecutor introduced as evidence two prior conviction orders for robberi es committed by Washington. At the conclusion of the evidence at the guilt phase, the jury found “the defendant guilty of malicious wounding . . . after having been previously c onvicted of two violent felonies ” and guilty of unlawful wounding during the commission of a felony. During the punishment phase, the prosecutor informed the jury that “because it was an element of the offense, you got to see [during the guilt phase] the conviction orders for Mr. Washington for two violent felonies.” At the co nclusion of their deliber ations, the jury fixed Washington’s punishment at life imprisonmen t for the malicious wounding offense, the mandatory sentence required by Code § 19.2-291.1, and at five years imprisonment and a five hundred dollar fine for a wounding while committ ing a felony. The trial judge sentenced Washington according to the jury’s verdict.

II. Washington contends that the trial judge er red in permitting the introduction of evidence of the two prior felony convictions at the guilt phase of the trial. He argues that Code § 19.2-297.1 does not create an element of the of fense proscribed in Code § 18.2-51, that the statutes do not require that the prior convictions be proven during the Commonwealth’s case-in-chief, and that the admission of the evid ence of the convictions before the punishment- 3 - phase begins is prejudicial. The Commonwealth contends the two prior felony convictions are

elements of the offense and must be su bmitted to the jury during the guilt phase. We resolve this issue by re viewing the statutes. Code § 18.2-51 provides that “if any person maliciously wound any person or by any m eans cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony.” In pertinent part , Code § 19.2-297.1 provides as follows: A. Any person convicted of two or more separate acts of violence when such offenses were not part of a common act, transaction or scheme . . . shall, upon conviction of a third or subsequent act of violence, be sentenced to life impr isonment and shall not have any portion of the sentence suspended, provided it is admitted, or found by the jury or judge before whom he is tried, that he has been previously convicted of two or more such acts of violence.

* * * * * * *

B. Prior convictions shall include convictions unde r the laws of any state or of the United States for any offense substantially similar to those listed under “act of violence” if such offense would be a felony if committed in the Commonwealth.

The Commonwealth shall no tify the defendant in writing, at least thirty days prior to trial, of its intention to seek punishment pursuant to this section. In applying these statutes, we are guided by well established principles. Under basic rules of statutory construction, we determine the General Assembly’s intent from the words contained in the statute. When the language of a statute is plain and unambiguous, courts are bound by the plain meaning of that language. Thus, when a statute’s language is unambi guous, courts cannot give that language a construction that amount s to holding that the General Assembly did not mean what it actually has stated. Volkswagen of America v. Smit , 266 Va. 444, 452, 587 S.E.2d 526, 531 (2003) (citations omitted). See also Burlile v. Commonwealth , 261 Va. 501, 511, 544 S.E.2d 360, 365 (2001) (holding that, when a statute has words of a plai n import, courts cannot construe them in a way that varies the plain meaning of the language). In other words, c ourts are bound by the plain- 4 - meaning of clear, unambiguous stat utory language. Pope v. Commonwealth , 19 Va. App. 130, 132, 449 S.E.2d 269, 270 (1994). Nothing in Code § 18.2-51, the statute pros cribing malicious woundi ng, provides that the occurrence of prior, separate acts of violence ar e elements of the offens e of malicious wounding. Likewise, Code § 19.2-297.1, the statute that defines th e effect of prior, separate acts of violence, does not provide that these acts are elements of the offense proscribed by Code § 18.2-51. Indeed, by its express terms, Code § 19.2-297.1 applies only “upon conviction of a third or subsequent act of violence,” and it provides that the convi cted person “shall . . . be sentenced to life imprisonment” upon the terms of the statute. (Emphasis added). Significantly, Code § 19.2-297.1 also provides that the prosecutor must “notify the defendant in writing, at least thirty days prior to trial, of its intention to seek punishment pursuant to this section.” (Emphasis added). In short, Code § 19.2-297.1 unambiguously rela tes to the punishment to be imposed upon conviction. Reinforcing its cl ear, unambiguous language, the legislature enacted Code § 19.2-297.1 in Title 19.2, Chapter 18, of the Code of Virginia under the heading “Sentence; Judgment; Execution of Sentence.” It is the only penalty enhanci ng statute in that chapter. Equally significant is the placement of this statute in the same title of the Code of Virginia as Code § 19.2-295.1, which provides for the bifurcati on of trials in which evidence of prior criminal convictions is admitted during the punishment phase. 1

1 In pertinent part, Code § 19.2-295.1 provides as follows: In cases of trial by jur y, upon a finding that the defendant is guilty of a felony . . . a separate proceeding limited to the ascertainment of punishment shall be held as soon as practicable before the same jury. At such proceeding, the Commonwealth shall present the defendant’s prior criminal convictions by certified, attested or exemplified co pies of the record of conviction, including adult convictions a nd juvenile convictions and- 5 - The Commonwealth asserts that the phrase “found by the jury,” wh ich is contained in Code § 19.2-297.1, implies that the fact finder must make a finding that the defendant has twice

before been convicted of violent offenses prescribed by the statute. We agree with this assertion, as far as it goes. The statutory language, how ever, does not require th at the prior conviction evidence be admitted during the guilt phase of tr ial. Rather, it expressly provides that “ upon conviction of a third or subsequent act of violenc e” that person shall be sentenced to life imprisonment, “provided it is admitted, or found by the jury or judge before whom [the defendant] is tried, that he has b een previously convicted of two or more . . . acts of violence.” Code § 19.2-297.1 (emphasis added). Consistent with Code § 19.2-295.1, this is evidence for enhancing punishment that is admissible and ap propriate for the jury’s determination at the punishment phase of trial. 2 The Commonwealth also relies on Berry v. Commonwealth , 22 Va. App. 209, 468 S.E.2d 685 (1996), to support the propositio n that Code § 19.2-297.1 must be read to provide that the

adjudications of delinquency. Prior convictions shall include convictions and adjudications of delinquency under the laws of any state, the District of Columbia, th e United States or its territories.

2 Prior to the enactment of Code § 19. 2-295.1, the Supreme Court held in Brown v. Commonwealth , 226 Va. 56, 59, 307 S.E.2d 239, 241 (1983), thatan accused was not denied due process when, during a trial that consolidated the issues of guilt and punishment, the jury was informed of previous convictions required for an enhanced punishment. In so holding, the Court noted that the trial judge cautio ned the jury not to consider the previous convictions in determining guilt and, significantly, the Court noted the following: Brown sought a bifurcated trial, but there is no statutory authorization for such a procedure in this case. Bifurcated trials have been provided by statute only in capital murder cases, Code § 19.2-264.3, and in certain traffic cases, Code § 46.1-347.2. There may be sound arguments for th e extension of such trials to other offenses in Virginia, but these arguments should be addressed to the General Assembly.

Id. at 59, 307 S.E.2d at 240-41 (footnote omitted). Eleven years later, in 1994, the General Assembly provided for bifurcated trials in felony prosecutions such as this case.- 6 - prior convictions are elements of the offense a nd, therefore, evidence of those convictions is properly submitted to the jury during the guilt phase of the trial. The short answer to this argument is that Berry does not require that we hold that Code § 19.2-297.1 is an element of the offense of malicious wounding because Berry concerned an entirely di fferent statute, Code § 18.2-248. The Berry decision dealt with the issue whet her a defendant’s prior narcotics convictions under Code § 18.2-248 were properly adm itted to the jury during the guilt phase of

the bifurcated trial in a third narcot ics prosecution under Code § 18.2-248. Berry , 22 Va. App. at 213, 468 S.E.2d at 687. Unlike Code § 18.2-51 and Code § 19.2-297.1, the stat utes at issue in this case, Code § 18.2-248, which wa s the statute at issue in Berry , provides for the substantive offense as well as for the penalty enhancement for a subsequent offense within the same statute. In Berry , we relied upon this inclusio n of the penalty enhancement in the same statute which creates the substantive crime in determining that the penalty enhancement was an element of the

offense. Recently, in Medici v. Commonwealth , 260 Va. 223, 532 S.E.2d 28 (2000), the Supreme Court held that introducing evid ence of a prior conviction at th e guilt phase of trial did not violate a defendant’s constitutional right to due process under the Fourteenth Amendment. Id. at 227-28, 532 S.E.2d at 31 (citing Brown , 226 Va. at 59, 307 S.E.2d at 241). Supporting its holding that no due process violat ion occurred, the Court noted th at the trial judge in Medici instructed the jury to consider the prior convictions only as ev idence of a prior conviction and not as evidence of the defendant’s guilt. Id. at 229, 532 S.E.2d at 32. The Court, however, specifically declined to addr ess “whether the better policy would be to introduce a prior conviction into evidence only during the sentencing phase . . . [or] whether a prior conviction is an element of the offense charged.” Id. The Court declined to do so because the issue raised by

Medici dealt solely with whether his constitution al due process rights were violated. Id.- 7 - In simple terms, the Supreme Court declined to decide the state-law issue in Medici because Medici raised only a constitutional due pr ocess issue. The United States Supreme Court has recognized the proposition that , although it is usually the case that prejudice is necessary to establish a violation of due process, see Estes v. Texas , 381 U.S. 532, 542-43 (1965); Hamilton

v. Alabama , 368 U.S. 52, 55 (1961), a claim of prejudice is not virtually identical to a claim of a due process violation. As the United States Supreme Court has noted, “proof of prejudice is generally a necessary but not su fficient element of a due process claim.” United States v.

Lovasco , 431 U.S. 783, 790 (1977). In this case, Washington argued that unde r state law the evidence of prior violent

convictions was not an elemen t of malicious wounding. See Code § 18.2-51. The trial judge ruled that it was and permitted the prosecutor to prove those convictions in the Commonwealth’s case-in-chief at the guilt phase of the bifurcated trial. We hold th at the trial judge erred in ruling that the prior convictions, which are require d for the enhanced punishment under Code § 19.2-297.1, are elements of the offense and in admitting evidence of those convictions during the guilt phase of the trial. 3

3 Although the trial judge later instructed the jury during the guilt phase that “[e]vidence that the defendant was previously convicted of prior offenses should be considered by you only for proof of the element of a prior conviction and not as proof that he committed the offense to which he is charged,” the trial judge also instructed the jury, in pertinent part, as follows:

The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime: (1) That the defendant wounded or caused bodily injury by any means to Kathleen Monroe; and (2) That such wounding or bodily injury was with intent to maim, disfigure, disa ble or kill Kathleen Monroe; and (3) That the act was done with malice; and (4) That the defendant has b een previously convicted of two violent felonies.- 8 - The general rule is well established that in a criminal prosecution, proof which shows or tends to show that the accused is guilty of the commission of othe r crimes and offenses at other times, even though they are of the same nature as the one charged in the indictment, is incompeten t and inadmissible for the purpose of showing the commission of the particular crime charged. Kirkpatrick v. Commonwealth , 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). Absent some exception to the general rule, “evidence implicating an accused in other crimes unrelated to the charged offense is inadmissible because it may confuse the issues being tried and cause undue prejudice to the defendant.” Guill v. Commonwealth , 255 Va. 134, 138, 495 S.E.2d 489, 491 (1998). As in this case, the ev idence “had the effect of impeaching [the defendant’s] character, which he ha d not put in issue, and led to the inference that because of a criminal propensity he probably committed the crime for which he was being tried.” Fleenor v.

Commonwealth , 200 Va. 270, 275, 105 S.E.2d 160, 163 (1958). The principle is well established, however, that evidence of other crimes, which are improperly admitted in the prosecution’s case-in-chief creates undue prej udice and constitutes reversible error, notwithstanding the absence of a claim of a due process violation. Lewis v. Commonwealth , 225 Va. 497, 501-02, 303 S.E.2d 890, 893 (1983). See also Donahue v. Commonwealth , 225 Va. 145, 156, 300 S.E.2d 768, 774 (1983). Accordingly, we reverse the conviction and remand for a new trial.

Reversed and remanded

.

If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt eac h of the above elements of the offense as charged, then you sh all find the defendant guilty of maliciously wounding or causing bodily injury.

The first instruction cannot be reconciled with the latter finding in struction because the finding instruction tells the jury that the previous convictions ar e “elements of the crime,” i.e., proof that he committed the offense to which he is charged.- 9 - McClanahan, J. dissenting. Because prior precedent binds us, I would affi rm the judgment of the trial court. See generally Armstrong v. Commonwealth , 263 Va. 573, 581, 562 S.E.2d 139, 143 (2002) (citing

Commonwealth v. Burns , 240 Va. 171, 173-74, 395 S.E.2d 456, 457 (1990)); Pulliam v. Coastal Emergency Servs., Inc. , 257 Va. 1, 10, 509 S.E.2d 307, 312 (1999); Johnson v. Commonwealth , 252 Va. 425, 430, 478 S.E.2d 539, 541 (1996); Selected Risks Ins. Co. v. Dean , 233 Va. 260, 265, 355 S.E.2d 579, 581 (1987); Clinchfield Coal Co. v. Reed , 40 Va. App. 69, 73-74, 577 S.E.2d 538, 540 (2003) (noting that the principl e that courts are bound by the doctrine of stare decisis “applies not merely to the literal ho lding of the case, but also to its ratio decidendi – the

essential rationale in the cas e that determined the judgm ent”); Bostic v. Commonwealth , 31 Va. App. 632, 635-36, 525 S.E.2d 67, 68 (2000); see also Code § 17.1-402(D). Prior Supreme Court of Virginia and Court of Appeals of Virginia cases have authorized the admission of recidivists’ pr ior convictions in th e guilt phase of trials for the purpose of enhanced punishment. See e.g. , Medici v. Commonwealth , 260 Va. 223, 229, 532 S.E.2d 28, 32 (2000); Brown v. Commonwealth , 226 Va. 56, 58-59, 307 S.E.2d 239, 240 (1983); Berry v.

Commonwealth , 22 Va. App. 209, 213, 468 S.E.2d 685, 687 (1996); Pittman v. Commonwealth , 17 Va. App. 33, 35-36, 434 S.E.2d 694, 695-96 (1993); Farmer v. Commonwealth , 10 Va. App. 175, 179-80, 390 S.E.2d 775, 776-77 (1990), aff’d on reh’g , 12 Va. App. 337, 404 S.E.2d 371 (1991) ( en banc ). The majority opinion holds that the three-st rikes law allows admission of evidence of prior crimes only in the sentencing phase of a bifurcated trial. The General Assembly established bifurcated jury tr ials for felonies or Class 1 misdemeanors in Code § 19.2-295.1 in 1994. Both Berry and Medici were decided post-1994. The issues in those cases, whether the bifurcation statute prohibits evidence of prior convictions from being admitted in the guilt phase,- 10 - and whether admission of prior convictions in th at phase violates a de fendant’s right to due process, respectively, are the identical issues raised in this case. 4 The appellant argues that “the factual determination [of his prio r crimes] must be made during th e sentencing phase of the trial” and that the trial court “failed to guarantee [his ] right to a fair trial and due process.” Berry held

that the bifurcation statute does not prevent the introduc tion of evidence of prior convictions in the guilt phase. Berry , 22 Va. App. at 213, 468 S.E.2d at 687. Medici held that admission of the prior crimes in the guilt/innocence phase does not violate due process. Medici , 260 Va. at 229,

532 S.E.2d at 32. See also Marshall v. Lonberger , 459 U.S. 422, 438 n.6 (1983) (reaffirming Spencer v. Texas , 385 U.S. 554, 567-69 (1967) (holding that admission of evidence of prior felonies at the guilt phase of a trial does not vi olate due process)). The majority’s attempts to distinguish Berry and Medici are, in my view , not persuasive. 5

4 The existence of the bifurcation statute does not change the requirement of proving prior convictions under the recidivi st statute, even if the provision for enhanced punishment is contained in a separate statute from the char ged offense. Either way, “[w]hen sentence enhancement is an issue, the Commonwealth has the burden of provi ng the existence of a defendant’s prior, valid convi ctions.” Harris v. Commonwealth , 26 Va. App. 794, 803, 497 S.E.2d 165, 169 (1998); see also Calfee v. Commonwealth , 215 Va. 253, 255, 208 S.E.2d 740, 741-42 (1974) (quoting Commonwealth v. Ellett , 174 Va. 403, 409, 413, 4 S.E.2d 762, 764, 766 (1939)). Moreover, the statute in this case requires the judge or jury to make a finding on the previous convictions. Code § 19.2-297.1. When findings are made at the sentencing phase of the trial, the questions then presented are: 1) wh at the burden of proof at that phase of the trial should be – preponderance of the evid ence or beyond a reasonable doubt, cf. Blakely v. Washington , ___ U.S. ___ (2004); Apprendi v. New Jersey , 530 U.S. 466 (2000); In re Winship , 397 U.S. 358 (1970); and 2) what ev identiary rules apply at that phase of the trial. Blakely , ___ U.S. at ___ (Breyer, J., dissenti ng) (citing United States v. Watts , 519 U.S. 148, 153-57 (1997) (per curiam)); cf. Witte v. United States , 515 U.S. 389, 399-401 (1995). In this case, jury instructions stated that the previous convi ctions were elements that the Commonwealth was required to prove beyond a reasonable doubt. The judge also gave a cautionary instruction that stated that the jury should consider evidence of the prior convictions “only for proof of the element of a prior conviction and not as proof that he committed the offense” with which he was charged. See Simpson v. Commonwealth , 199 Va. 549, 554, 100 S.E.2d 701, 705 (1957).

5 The majority attempts to distinguish Berry by stating that the statute at issue in Berry , Code § 18.2-248, provides for both the substantiv e offense and penalty enhancement for a subsequent offense within the same statute, th erefore making it an element of the offense.- 11 - A panel of this Court is not authorized to overrule established precedent. See Robinson

v. Commonwealth , 13 Va. App. 540, 543, 413 S.E.2d 661, 662 (1992) (“Under the rule

of stare decisis , a decision by a panel of this court is an established precedent.”); Roane

Because the penalty enhancement in this case falls under Title 19.2 of th e Code, the majority finds it is not an element of the offense and, thus, Berry does not apply. However, in Brown , 226 Va. at 58-59, 307 S.E.2d at 240, the Supreme Court addressed admission of prior crimes under Code § 19.2-297, a st atute that has since b een repealed. That statute employed nearly identical language to the stat ute at issue in the case at bar, except that it provided enhanced penalties for larc enies rather than violent felonies. Like the statute in this case, it also fell under Title 19.2. Additio nally, because Code § 19.2-297.1 is a general recidivism statute that applies to numerous cr iminal statutes, its placement in Title 19.2 saves repetition of its provisions in each of the substa ntive criminal statutes to which it applies. Finally, names or titles of st atutes do not control statutor y construction. Code § 1-13.9. With regard to Medici , the majority attempts to disti nguish it by stati ng that it “dealt solely with whether his constituti onal due process rights were viol ated.” The majority holds that admission of the prior convictions is prejudicial and ther efore is distinguishe d from a claim of a due process violation. In the case at bar, the question presented is whether the trial court erred in admitting “two prior felony convictions during the culpability phase of the trial,” which was for the purpose of the sentence enhancement under th e so-called three-strikes law. However, appellant does not attempt to distinguish, as th e majority does, a claim of prejudice and due process. Appellant argues, The Defendant’s state and federal constitutional rights to a fair trial require that no unnecessary prejudicial evidence be entered against the Defendant. The trial court did not follow that language and meaning of the stat ute and failed to guarantee the Defendant’s right to a fair trial and due process. The Defendant did not receive a fair trial because of this prejudice. In fact, whether a circumstance is prejudicial is inherently a question of due process: “Every procedure which would offer a possible temptation to the average man . . . to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true be tween the State and the accused, denies the latter due process of law.” Estes v. Texas , 381 U.S. 532, 543 (1965) (quoting Tumey v. Ohio , 273 U.S. 510, 532 (1927)). “[M]ost cases involving claims of due proce ss deprivations . . . require a showing of identifiable prejudice to the accused. Neverthe less, at times a procedure employed by the State involves such a probability that pr ejudice will result that it is d eemed inherently lacking in due process.” Id. at 542-43. Thus, whether admission of the tw o felonies is prejudi cial is essentially a question of due process. The Supreme Court has held that admission of evidence of prior felonies at the guilt phase of a trial does not violate due process. Spencer , 385 U.S. at 567-68; see also Lonberger , 459 U.S. at 438 n.6.- 12 - v. Roane , 12 Va. App. 989, 993, 407 S.E.2d 698, 700 (1991) (“[W]e are bound by the decisions of the Supreme Court of Virginia and are wit hout authority to overrule [them].”). Though the

statutes at issue in the recidivism cases cited ab ove are not the specific statute at issue in this

case, stare decisis requires that we are bound by not just the literal holding in the case, but by the

essential rationale that de termines the judgment of the case. Clinchfield Coal , 40 Va. App. at 73-74, 577 S.E.2d at 540. Therefore, I respectfully dissent.